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Court of Criminal Appeal 20 December 2024

Salameh v R

[2024] NSWCCA 239

Drugs
STATUTORY INTERPRETATION APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE SUPPLY OF A PROHIBITED DRUG

Citation: Salameh v R [2024] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 20 December 2024
Judges: Bell CJ, Payne JA and Sweeney J; Basten AJA; Dhanji J

Background

Following an incident at a Petersham brothel in January 2020, police executed a search warrant at the applicant's home and found two separate quantities of fentanyl: 175.4 grams and 3.6 grams. These formed the basis of two charges under the Drug Misuse and Trafficking Act 1985 (NSW): supply of a large commercial quantity (count 3) and supply of a commercial quantity (count 4) of a prohibited drug.

The applicant was convicted after a judge-alone trial in the District Court in April 2023. At the subsequent sentence hearing, he raised for the first time that he had believed the drugs to be cocaine rather than fentanyl. He was ultimately sentenced to an aggregate of six years and nine months imprisonment, with a non-parole period of four years.

The applicant then sought leave to appeal against both his convictions and his sentence. The conviction appeal turned principally on the proper construction of s 25(2) of the Drug Act and what knowledge about the prohibited drug an accused must hold in order to be convicted of the aggravated supply offences.

  • What mental element is required to establish an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), specifically whether an accused must know they are supplying the particular prohibited drug charged, or only that they are supplying a prohibited drug?
  • Whether a mistaken belief as to the identity of the specific drug in an accused's possession provides a defence to charges under s 25(2).
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offending.
  • Whether leave to appeal against sentence should be granted, given the appeal was raised as a new ground out of time after the sentence appeal had previously been abandoned.

Decision

On the construction of s 25(2) and the mental element: The Court unanimously rejected the applicant's argument that the phrase "the prohibited drug" in s 25(2) should be read as referring to whichever prohibited drug the accused believed they were supplying. Bell CJ, Payne JA and Sweeney J held that the phrase refers only to the actual prohibited drug supplied, not to a drug the accused mistakenly believed to be involved. Consistent with established authority, an accused need only know they are supplying "a" prohibited drug, not a "particular" prohibited drug. A mistaken belief as to the specific drug identity does not attract an additional mental element that could operate as a defence.

On the quantity element: Basten AJA (with whom the other members of the Court agreed) elaborated on the mental element in greater detail. His Honour held that, to establish the offence under s 25(2), the prosecution must prove the accused knew or believed the substance was a prohibited drug and also knew, in the ordinary sense, that the quantity was of the order that the law defines as a large commercial or commercial quantity. The accused need not know the legal significance of the quantity or the specific identity of the drug. The earlier decision in R v Busby [2018] NSWCCA 136, which had suggested a different approach, was disapproved.

On the sentence appeal: Bell CJ, Payne JA and Sweeney J confirmed that an assessment of objective seriousness is a matter for the sentencing judge and is only reviewable on the House v The King standard for appellate review of discretionary decisions. The sentencing judge's finding that the applicant's lack of knowledge of the specific drug did not reduce the objective seriousness of the offending was open on the facts and disclosed no error. Basten AJA further noted that leave to appeal against sentence should be refused because the ground had been raised as a new ground out of time, without leave, and without disclosing to the Court that the very same ground had previously been the sole ground of a sentence appeal that was then abandoned.

Additional observations: Dhanji J made observations about the proper framing of an indictment where an aggravating factor, such as quantity, results in a higher maximum penalty, considering relevant High Court authority.

Orders Made

  • Leave granted to appeal against the convictions for taking part in the supply of a large commercial quantity and a commercial quantity of a prohibited drug.
  • The appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), a conviction does not require that the accused knew or believed they were supplying the specific prohibited drug charged. Knowledge that the substance is "a" prohibited drug is sufficient; a mistaken belief as to the drug's identity does not provide a defence.
  • The mental element for the quantity component requires that the accused knew the quantity was of the order of a large commercial or commercial quantity, without any need to know the legal definition of that threshold or the precise identity of the drug.
  • R v Busby [2018] NSWCCA 136, which had suggested that a defendant's mistaken belief about drug identity was relevant to the mental element of a s 25(2) offence, was disapproved by the Court.
  • Assessments of objective seriousness in sentencing are matters for the sentencing judge and are only open to appellate review on the House v The King standard. The fact that an applicant was unaware of the specific drug they possessed does not necessarily reduce the objective gravity of the offending.
  • A sentence appeal ground raised out of time, without leave, and without disclosing to the Court that it had previously been raised and then abandoned as a sole ground of appeal will be refused leave on that basis alone.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 24, 25, 29, 33, 41, Sch 1
- Criminal Appeal Act 1912 (NSW), ss 5, 7
- Criminal Procedure Act 1986 (NSW), s 33
- Crimes Act 1900 (NSW), s 41
- Criminal Code Act 1995 (Cth), ss 307.1, 307.2
- Customs Act 1901 (Cth), ss 233B, 235
- Misuse of Drugs Act 1981 (WA), s 6

Key Cases:
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Cheng v The Queen (2000) 203 CLR 248
- Cheung v The Queen (2001) 209 CLR 1
- Kingswell v The Queen (1985) 159 CLR 264
- House v The King (1936) 55 CLR 499
- Dunn v The Queen (1986) 32 A Crim R 203
- Finch v R (2016) 259 A Crim R 407
- Hamzeh v R [2022] NSWCCA 232
- R v Busby [2018] NSWCCA 136 (disapproved)
- R v CWW (1993) 32 NSWLR 348
- Bahri Kural v The Queen (1987) 162 CLR 502
- Moriarty v Nye (2024) 114 NSWLR 560